Kenneth Simons, ‘Self-Defense, Necessity, and the Duty to Compensate, in Law and Morality’

Abstract
What is the proper scope of the right to self-defense in law and morality? How does this right compare to the privilege of necessity? Professor Uwe Steinhoff’s manuscript offers a distinctive and wide-ranging perspective on the controversial questions these privileges raise. This essay engages with a number of his arguments, particularly focusing on legal and moral duties of compensation. First, this essay examines how Anglo-American tort law would likely address the defender’s liability in a variety of scenarios, including disproportionate, excessive, and unnecessary force; unreasonable and reasonable mistakes; and use of force against innocent aggressors. It next considers whether private necessity principles that apply to appropriations of private property also apply to actors who intentionally infringe or violate rights of bodily integrity. The essay then turns to the privilege of public necessity, which generally is not, but perhaps should be, accompanied by a duty to compensate, and its relationship to rights of self-defense. The following section explores mistake, justification, and excuse, and considers the question of whether an innocent victim should receive compensation from a reasonably mistaken defender. The final section explains that the notion of conditional fault helps make sense of a strict liability duty to compensate.

Kenneth W Simons, Self-Defense, Necessity, and the Duty to Compensate, in Law and Morality, 55 San Diego Law Review 357 (2018).

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